In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4143
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JESSE C HARLES A DAMS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 4:06-CR-40081—Joe Billy McDade, Judge.
A RGUED F EBRUARY 22, 2010—D ECIDED D ECEMBER 13, 2010
Before K ANNE and W ILLIAMS, Circuit Judges, and
S PRINGMANN, District Judge.
W ILLIAMS, Circuit Judge. A jury convicted Jesse
Charles Adams, Jr. of possession with intent to distrib-
ute and conspiracy to distribute crack cocaine from at
The Honorable Theresa L. Springmann, United States
District Court for the Northern District of Indiana, sitting by
designation.
2 No. 08-4143
least 2001 through June 13, 2006. Adams originally
raised four issues on appeal: (1) whether the district
court improperly admitted testimony regarding three
earlier drug-related events in violation of Rule 404(b);
(2) whether the district court erred in admitting testi-
mony related to a non-testifying “confidential source”
in violation of Adams’s Sixth Amendment right of con-
frontation; (3) whether the prosecutor’s improper
vouching for a witness denied Adams a fair trial; and
(4) whether any errors resulted in cumulative error. We
reject these arguments and affirm his conviction because:
(1) the district court properly admitted the evidence
of Adams’s involvement in the conspiracy as direct
evidence; (2) any Confrontation Clause errors were harm-
less; (3) the improper comment during closing remarks
did not deny Adams a fair trial; and (4) Adams has not
shown that but for the collective errors the jury would
have come to a different verdict.
While this appeal was pending, we granted Adams’s
request to file a supplemental memorandum addressing
the Fair Sentencing Act of 2010, its modification of 21
U.S.C. § 841, and his request for resentencing. But
because the change in the statute is not retroactive, we
conclude that it does not affect Adams’s case, and
affirm his sentence.
I. BACKGROUND
Jesse Charles Adams, Jr. was arrested on June 13, 2006
after police officers responded to a disorderly conduct
complaint in East Moline, Illinois. While Adams was in
No. 08-4143 3
the booking room awaiting the booking procedure, a non-
arresting officer, Officer Chad Broderson, received a
phone call from a confidential informant (“CI”). The CI
told Officer Broderson that Adams was a known drug
dealer who was currently in police custody and would
likely have drugs hidden in his rectum. Officer Broderson
checked to see if Adams was in custody and went to the
booking cell to inspect Adams’s property. A small piece
of crack fell out of Adams’s hat, and Officer Broderson
also found a crack pipe in Adams’s waistband. After
Adams refused to show Officer Broderson his rectal
area, the officer left the room to discuss a rectal search
with an assistant state’s attorney. When he returned,
Adams was holding two feces-covered plastic bags
which Adams claimed he found on the floor of the
booking room. A videotape of Adams in the booking
cell showed Adams leaning to one side and moving his
hand below his waist during this time. Officer Broderson
ultimately recovered a crack pipe, $861 in cash, and a
total of 5.2 grams of crack cocaine and 5.9 grams of
powder cocaine. Based on this arrest, Adams was
indicted on August 17, 2006 for possession with intent
to distribute five grams or more of crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). A grand
jury returned a superseding indictment on April 18,
2007 that added a second count charging Adams with
conspiracy to distribute 50 or more grams of crack
cocaine from at least 2001 through at least June 13, 2006,
in violation of 21 U.S.C. § 846.
Adams pleaded not guilty. At trial, the government
supported the conspiracy count largely through witness
4 No. 08-4143
testimony. Laurel Smith testified that she bought crack
from Adams weekly from 2001 to 2004, except when he
was unavailable, and three other women who either
bought crack from, delivered crack to, or accompanied
Adams on his way to buy crack testified about those
events.
The government also called several police officers to
testify regarding their encounters with Adams between
2001 and 2006. Sergeant Luke Blaser testified to a
March 27, 2002 incident where Adams was leaning into
the driver’s side of a parked car occupied by Charlene
Dixon. Sergeant Blaser arrested Dixon on an outstanding
warrant. During this arrest, he also arrested Adams
for possession of a controlled substance. At the police
station, the inventory of Adams’s belongings revealed
he had $3,000 in cash in his pocket. This cash was
grouped into two separated bundles of $1,000 in incre-
ments of $100, and the remaining $1,000 bundled in
smaller bundles of $100 each.
Officer Eric Schaver testified to an arrest on May 18,
2004, when Adams was arrested for driving with an
expired license. During a search, Officer Schaver found
$290 in cash and a plastic bag containing 1.6 grams of
crack cocaine. And on June 1, 2006, Adams was again
arrested for driving without a license. Officer Darren
Gault received a phone call from a CI saying that Adams
had a large sum of money and was intending to buy
crack cocaine. The CI also gave Adams’s location and
car information. During this arrest, Adams was found
to have a crack pipe and $1,800 in cash, bunched in
$100 bundles.
No. 08-4143 5
Three of Adams’s alleged co-conspirators testified as to
their dealings with Adams. Each acknowledged at trial
that they were testifying under the terms of a plea agree-
ment and in hopes of receiving a reduced sentence for
their cooperation. William Neal was the leader of the
group and the person in charge of supplying the East
Moline area with drugs. Maurice Gibson testified that
he received his drug supply from Neal, and became
close to Adams when they were both incarcerated in
2004. Once the two were released, Gibson testified that
he would distribute drugs to Adams on a consistent
basis, he had an agreement with Adams to share profits
from the distribution, and he saw Adams dealing crack
from a shared crack house. Kenneth Wilson also
received his drug supply from Neal, and testified that
he had sold crack to Adams on a consignment basis.
Wilson further testified that he saw Adams cooking
powdered cocaine into crack for the purpose of distri-
buting it. The three co-conspirators testified that they
would front drugs to Adams with the understanding
that Adams would split his profits with them. Neal
testified that he initially fronted Adams with 3.5 grams
of crack with the understanding that Adams would pay
Neal back for that amount before he could get a larger
amount to sell. Over time the amounts fronted to
Adams increased, with Neal testifying that at one point,
Adams was receiving a half-ounce of crack from Neal
five times a week and sometimes twice a day.
Adams’s attorney and the prosecution agreed to a
stipulation detailing the dates of Adams’s incarceration
between 2000 and 2006. Adams stipulated to these dates
6 No. 08-4143
because his defense at trial was that he was a crack-
cocaine user, not a conspirator or distributor. To further
this defense and to suggest that large amounts of crack
could be for self-use, Adams’s counsel elicited testi-
mony from police officers as to statements Adams
made about how much crack it took him to get high.
Testimony was also elicited about how much usage a
crack pipe experienced and whether one crack pipe
was different from another one seized from Adams.
In addition to his defense that he was a crack user,
counsel used the dates of incarceration to cross-examine
and impeach the government’s witnesses on the dates
when they were supposedly conspiring or receiving
drugs from Adams.
On August 13, 2008, the jury convicted Adams on
Count I, possession with intent to distribute five grams
or more of crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B). He was also found guilty
of Count II, conspiracy to distribute 50 grams or more of
crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. He timely appealed.
II. ANALYSIS
A. Prior Police Encounters Properly Admitted as
Direct Evidence
Adams had contact with the police on March 27,
2002; May 18, 2004; and June 1, 2006. At trial, the
district court admitted testimony regarding these
incidents from both civilians and police officers. On
No. 08-4143 7
appeal, Adams argues that the district court erred in
admitting this testimony, because the evidence was
impermissibly used for propensity purposes in violation
of Federal Rule of Evidence 404(b).
As an initial matter, the parties dispute the relevant
standard of review applicable to the evidentiary rulings.
If a party makes a timely, specific objection to the evi-
dence in question, we consider that objection to be pre-
served on appeal and review the district court’s ruling
for abuse of discretion. United States v. Whitaker, 127
F.3d 595, 601 (7th Cir. 1997) (in order to preserve the
evidentiary argument on appeal, the party must “stat[e]
the specific ground of objection, if the specific ground
is not apparent from the context”). If no such objection
is made, we review the decision for plain error. United
States v. Garcia, 580 F.3d 528, 536 (7th Cir. 2009).
Here, the government argues that Adams’s defense
counsel’s objections at trial were not specific enough to
preserve the Rule 404(b) ground and warrant the
more demanding abuse of discretion standard. We
doubt that Adams’s general or relevancy objections to
the testimony about prior drug-related events were
specific enough to preserve Rule 404(b) grounds, United
States v. Gibson, 170 F.3d 673, 677-78 (7th Cir. 1999), but
even if we assume Adams preserved the argument, it fails.
Adams contends that the district court erred in ad-
mitting evidence of his prior arrests, because the evidence
served no real purpose other than to demonstrate his
propensity to commit the crimes, a purpose prohibited by
Rule 404(b). Adams also argues that even if the evidence
8 No. 08-4143
was admissible, it was unfairly prejudicial and should
have been excluded. Federal Rule of Evidence 404(b)
excludes evidence used “to prove the character of a
person in order to show action in conformity there-
with.” Fed. R. Evid. 404(b). Notably, Rule 404(b) only
applies to “[e]vidence of other crimes, wrongs, or acts . . . .”
Id. (emphasis added). So, if the evidence is admitted as
direct evidence of the charged offense, Rule 404(b) is not
applicable. See United States v. Alviar, 573 F.3d 526, 538
(7th Cir. 2009). Specifically, evidence directly pertaining to
the defendant’s role in a charged conspiracy is not ex-
cluded by Rule 404(b). Id. Of course, Rule 403 may con-
tinue to protect the defendant against admission of the
evidence if it would be “unduly prejudicial.” Fed. R.
Evid. 403.
Rule 404(b) has no role to play here, because all the
challenged evidence is direct evidence of Adams’s role
in the charged conspiracy and not propensity evidence.
The circumstances of the March 27, 2002 arrest directly
relate to the indictment’s conspiracy count charging
that Adams had been involved in a conspiracy with
other people from at least 2001 to June 13, 2006. The
testimony showed that Adams occupied a car containing
cocaine and had a large amount of cash folded into
$100 sections. The evidence directly supported the con-
spiracy charge by showing his involvement in conditions
highly probative of conspiratorial drug distribution,
namely large amounts of cocaine and cash arranged in
specific monetary increments. See, e.g., United States v.
Penny, 60 F.3d 1257, 1263 (7th Cir. 1995) (finding evidence
No. 08-4143 9
of “unexplained wealth” probative of drug conspiracy);
United States v. Zarnes, 33 F.3d 1454, 1465 (7th Cir. 1994)
(finding evidence of large drug quantities to indicate
a conspiracy).
Adams maintains that this 2002 arrest should be irrele-
vant, because he did not meet some of his co-conspirators
until 2004. There is no requirement, however, that a
conspiracy involve exactly the same parties for the
entire length of its existence. See United States v.
Kincannon, 567 F.3d 893, 898-99 (7th Cir. 2009); United
States v. Townsend, 924 F.2d 1385, 1389-90 (7th Cir. 1991)
(“[T]he government doesn’t have to prove with whom
a defendant conspired; it need only prove that the defen-
dant joined the agreement alleged, not the group.”).
Evidence from 2002 is certainly relevant to the charged
conspiracy (which began in “at least 2001” and involved
“other people” according to the indictment), regardless
of which specific co-conspirators were involved during
the early years. The government elicited testimony
that Adams began dealing crack in 2001, which sup-
ported its charge that he was engaged in conspiracy
to distribute drugs at that time. Even though Adams
was not yet involved with all of his eventual co-conspira-
tors at the time of his arrest in 2002, the circumstances
of that arrest are directly relevant to the charged conspir-
acy to distribute drugs beginning in at least 2001.
Next, Adams challenges testimony from Laurel Smith
and Officer Eric Schaver regarding his May 18, 2004
arrest. Like the 2002 arrest, this testimony also provides
direct evidence of the charged conspiracy. Smith testified
10 No. 08-4143
that she was a regular customer of Adams. On one oc-
casion, she had loaned her car to Adams in exchange
for crack cocaine. Smith stated that when Adams did not
return the car as expected, she called a tip into the po-
lice. Other witnesses testified that they had fronted drugs
to Adams around May 2004. Therefore, Smith’s testimony
that Adams provided her with crack cocaine sup-
ports the government’s argument that Adams was
re-distributing cocaine and is directly relevant to the
charged conspiracy. The arresting officer testified he
found cash and crack cocaine in Adams’s pockets.
This testimony is circumstantial evidence of the drug
conspiracy itself, not a different crime, wrong, or act
excluded by Rule 404(b).
Finally, the government presented testimony relating
to Adams’s June 1, 2006 arrest. The arresting officer
testified that he found a crack pipe and a large amount
of cash folded in bundles on Adams’s person. He also
testified that Adams discussed his crack addiction
and plans to purchase more crack cocaine. This is also
direct evidence of the conspiracy, because crack cocaine
paraphernalia and cash folded into specific increments
are circumstantial evidence of a drug distribution con-
spiracy. See e.g., Penny, 60 F.3d at 1263; Zarnes, 33 F.3d
at 1465.
We think it is a much closer question whether the
evidence of these prior arrests and drug-related events
should have been excluded under Rule 403. Even when
the testimony is direct evidence of the charged con-
spiracy and Rule 404(b) is not involved, Rule 403
No. 08-4143 11
would still protect Adams against evidence that is
unduly prejudicial. See United States v. Sophie, 900 F.2d
1064, 1074 (7th Cir. 1990). We remain wary of the
potential for unfair prejudice in the admission of prior
criminal acts, Old Chief v. United States, 519 U.S. 172, 185
(1997); United States v. Avila, 557 F.3d 809, 818 (7th Cir.
2009), and we agree with the defendant that many of the
details of the police encounters were unnecessary to get
into evidence facts regarding Adams’s possession of
large amounts of crack and cash. For example, during
Officer Schaver’s testimony regarding the May 18, 2004
arrest, he referred to his familiarity with Adams’s mug
shot and home address from past police responses. Fur-
ther, we question whether any details of the arrests
were needed to get in the evidence about drug amounts
and cash bundles. The court should have directed wit-
nesses to avoid discussing details of any arrests and to
testify only to the drug amounts and cash bundles
found on Adams on the relevant dates. However, the
prosecution did focus its examination on the drug
amounts and cash bundles found on Adams, and not
on any results of the police encounters. In light of the
balancing test required under Rule 403, and cognizant of
the wide discretion a district court has to make
evidentiary rulings, the district court did not err by
determining the probative value of the evidence to be
greater than its prejudicial effect. The jurors were
likely already aware that Adams had a mug shot and
they were most certainly aware of his extensive prior
contact with police from his trial stipulations of the
various periods of time spent incarcerated. In the stipula-
12 No. 08-4143
tion given to the jury and again during the closing
remarks, Adams admitted to each time he was incar-
cerated during the period of the alleged conspiracy.
This was an extensive list: for example, he was incar-
cerated for various arrests during the majority of the
year 2004.
The evidence in question was directly related to the
charged conspiracy, should not have been excluded
under Rule 404(b) as prior bad act evidence, and was
not unduly prejudicial under Rule 403. Therefore, the
district court did not abuse its discretion in admitting
evidence regarding Adams’s possession of cocaine,
large amounts of cash, and distribution habits during
the time of the charged conspiracy.
B. Any Confrontation Clause Errors Were Harmless
Next, Adams argues that the district court erred by
allowing two police officers to testify regarding two
conversations they had with a non-testifying con-
fidential source about Adams. He challenges the admis-
sion of a CI’s statements that led to a search while he
was in a booking cell on June 13, 2006 and the admission
of a CI’s statements that led to a traffic stop on June 1,
2006. The Confrontation Clause of the Sixth Amend-
ment bars the admission of testimonial hearsay evidence
unless the declarant is unavailable and the defense had
a prior opportunity to cross-examine him. Crawford v.
Washington, 541 U.S. 36, 53-55 (2004); United States v.
Watson, 525 F.3d 583, 588-89 (7th Cir. 2008). A statement
is considered testimonial if it is given under circum-
No. 08-4143 13
stances which would lead an objective witness to
believe that the statement would be used at a later trial.
Watson, 525 F.3d at 589. Our cases recognize there is a
particular potential for abuse when police officers testify
to out-of-court statements by confidential informants.
United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004).
We review de novo whether an evidentiary ruling
violates the Confrontation Clause, and a harmless error
analysis applies. United States v. Castelan, 219 F.3d 690,
694 (7th Cir. 2000).
1. June 13, 2006 CI Statement
On June 13, 2006, Adams was arrested and held in a
booking room. At trial, Officer Broderson testified that a
CI called the police station to tell him that Adams had
been arrested after leaving a drug dealer’s residence,
was currently being held at the police station, and had
drugs on his person, specifically in his rectal area. Until
this CI call, Officer Broderson was not involved in
Adams’s arrest and had no reason to know that
Adams was in the building. Officer Broderson followed
up on this information, and as a result, he recovered
crack from the booking cell.
The government argues that the CI’s statements to
Officer Broderson were not introduced for the truth but
merely as a foundation for explaining why the officer
went down to the booking area and his subsequent
actions. The government also assures this court that the
admitted testimony was “brief” in explaining why the
foundational testimony was admissible. We disagree.
14 No. 08-4143
The CI’s statements directly inculpate Adams on the
charge of possessing crack with the intent to distribute
it, and were not necessary to provide any foundation
for the officer’s subsequent actions. The brevity of an
inadmissible statement may show its harmlessness, but
it cannot make an inadmissible statement admissible.
The CI’s statements here are different from statements
we have found admissible that gave context to an other-
wise meaningless conversation or investigation. See, e.g.,
United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006)
(defendant’s statements on the tape recording would
only make sense with the CI’s side of the conversation);
Silva, 380 F.3d at 1020 (noting generally that a CI state-
ment may be introduced if it would help the jury under-
stand why the police targeted a seemingly random indi-
vidual); cf. United States v. Lovelace, 123 F.3d 650, 653
(7th Cir. 1997) (error to introduce a tip to explain why
police officers pulled over defendant in the absence of
any need for context). Here, the CI’s accusations did not
counter a defense strategy that police officers randomly
targeted Adams. And, there was no need to introduce
the statements for context—even if the CI’s statements
were excluded, the jury would have fully understood
that the officer searched Adams and the relevance of
the items recovered in that search to the charged crime.
The CI’s statement was offered for its truth—that Adams
possessed crack on his person—and it was testimonial.
The district court erred by allowing its admission
through Officer Broderson’s testimony.
Although the statement violated Adams’s Sixth Amend-
ment right to confront his witnesses, the error was harm-
No. 08-4143 15
less. Whether an error is harmless beyond a reasonable
doubt depends upon factors such as (1) the importance
of a witness’s testimony in the prosecution’s case;
(2) whether the testimony was cumulative; (3) the
presence or absence of corroborating or contradictory
evidence; and (4) the overall strength of the prosecution’s
case. Castelan, 219 F.3d at 696. Here, the evidence was
overwhelming that Adams possessed crack on June 13,
2006. Officer Broderson found the crack in Adams’s hat
and smoking paraphernalia in his waistband. Then,
Adams refused a rectal search. Officer Broderson left
Adams in an empty booking cell to talk to a state’s attor-
ney. When he returned minutes later, Officer Broderson
found Adams with two-feces covered baggies in his
hand. A video of the room during this time shows
Adams leaning over on the bench and putting his hand
down his waistband before the feces-covered baggies
of crack appeared in the booking cell. Given this evidence,
the error of introducing the CI’s statement was harmless.
2. June 1, 2006 CI Statement
The second CI statement that Adams challenges served
as the basis for a police encounter on June 1, 2006. Officer
Gault initiated a police stop of Adams’s car and found
Adams with a large amount of cash and a crack pipe.
When asked by the prosecution to explain how and why
he initiated this police stop, Officer Gault explained that
he had been contacted by a CI. According to Officer
Gault, this CI explained that Adams was involved in
drugs, had a large amount of money on him and was on
16 No. 08-4143
his way to buy crack, and described the car Adams was
driving. Over the defense’s objection, the district court
allowed this testimony as “foundation” for what the
police officer did. The district court did issue a limiting
instruction to the jury, stating the court was “allowing
this testimony not to prove the truth of what he was
told but simply as a foundation for what he did.” Later,
Officer Gault also confirmed that the car Adams was
driving matched the description given by the CI.
The government does not deny the statements are
testimonial, but argues they are relevant non-hearsay
because they give context to the investigation and
explain why the police officer did what he did. As we
said in Silva: “under [this] theory, every time a person says
to the police ‘X committed the crime,’ the statement . . .
would be admissible to show why the police investigated
X. That would eviscerate the constitutional right to con-
front and cross-examine one’s accusers.” Silva, 380 F.3d
at 1020. Once the court was alerted to the problem, it
should have ensured that any references to the CI’s
statements were eliminated in the police officer’s testi-
mony about the June 1, 2006 encounter. Here, the imper-
missible CI statements are even more dangerous than
the CI statements admitted in relation to the June 13, 2006
incident because they not only provide the reason for a
specific police encounter, but also implicate Adams in
the larger conspiracy. The officer testified that the police
department had “cultivated” the CI to give them infor-
mation about “drug dealers, distributors, or people that
possess narcotics” and that the CI said that Adams was
“one of the local people that were involved in drugs.”
There was no purpose to this testimony except for the
No. 08-4143 17
jury to believe its truth, that Adams was a person
involved in drugs.
The statement should not have been admitted, but
again the error was harmless. The CI’s statements were
fully corroborated and independently confirmed by
Officer Gault’s first-hand knowledge of the incident and
the evidence found on Adams that day. Furthermore,
the evidence that Adams was not a mere drug user but
a member of a larger conspiracy to distribute drugs
was independent of any of these statements. Four
women testified that they had acquired drugs from,
delivered drugs to, or accompanied Adams to buy
drugs. Most importantly, three co-conspirators testified
against Adams. The CI’s statements were cumulative
of this other evidence presented at trial, and we find
that the error was harmless. Castelan, 219 F.3d at 697-98.
C. Prosecutor’s Improper Remarks Did Not Deprive
Adams of a Fair Trial
In her closing remarks, the prosecutor improperly
expressed her personal belief in the truthfulness of a
witness, which the government concedes was improper.
United States v. Anderson, 303 F.3d 847, 855 (7th Cir.
2002). Specifically, the prosecutor stated, “Others like
Laurel Smith were judge subpoenaed to be here to
come into court and tell the truth. She took an oath,
‘I will tell the truth.’ And ladies and gentlemen, I believe
that’s what she did.” The government acknowledges it
was improper for the prosecutor to express her belief
that Laurel Smith, a frequent customer of Adams during
the early years of the conspiracy, had told the truth
18 No. 08-4143
when she testified about various occasions when she
purchased drugs from Adams.
If comments are improper, we will examine the record
to determine if they deprived the defendant of a fair
trial. United States v. Scott, 267 F.3d 729, 740 (7th Cir.
2001). In doing so, we consider five factors: (1) the
nature and seriousness of the misconduct; (2) the extent
to which the comments were invited by the defense;
(3) the extent to which any prejudice was ameliorated
by the court’s instruction to the jury; (4) the defense’s
opportunity to counter any prejudice; and (5) the weight
of the evidence supporting the conviction. Id. Here, Ad-
ams’s counsel failed to object to the remark at trial, and
so Adams has the additional burden of overcoming
plain error review. We require the defendant to show
that not only did the plainly improper remarks deprive
him of a fair trial, “but also that the outcome of the pro-
ceedings would have been different absent the re-
marks.” Id. (citations omitted).
Smith was one of the few government witnesses who
was neither cooperating under a plea agreement, nor a
police officer. This may have made her testimony par-
ticularly important to the jury. Cf. United States v.
LeFevour, 798 F.2d 977, 983-84 (7th Cir. 1986) (discussing
the practice of the government eliciting information
about a cooperating witness’s plea agreement in direct
examination so as to take the “sting” and “shock[ ]” out of
discovering the reason for testimony on cross-examina-
tion). The improper remark was serious, and the district
court did not issue instructions to the jury to disregard
the remarks (and the defense did not ask the court to
No. 08-4143 19
issue any such instructions). Defense counsel had the
opportunity to refute the prosecutor’s comment in its
closing statement, and did so by reminding the jury that
they had to “make a determination whether or not
[Smith] is believable,” and that the jurors were the only
ones who could judge credibility. The prosecution did
not reference any improper remarks in its rebuttal. And,
most importantly, the weight of the evidence against
the defendant was substantial and eliminated any
doubt that the “prosecutor’s remarks unfairly prejudiced
the jury’s deliberations or exploited the Government’s
prestige in the eyes of the jury.” Alviar, 573 F.3d at 543
(citations omitted). Three of Adams’s co-conspirators
testified to the conspiracy and Adams’s role in it. Even
without Smith’s testimony, other women testified to
Adams’s role as a drug dealer. Because this is a review
under plain error, Adams must show that he would
have been acquitted had it not been for the prosecutor’s
comment. Scott, 267 F.3d at 740. We conclude that the
government’s improper remark did not change the out-
come of the trial, and so the district court did not err
in denying Adams a new trial.
D. No Cumulative Error
Finally, Adams argues that even if each error was
individually harmless, the errors taken together prej-
udiced his right to a fair trial. To demonstrate cumulative
error, Adams must show that (1) at least two errors were
committed during the trial, and (2) these errors denied
Adams a fundamentally fair trial. United States v. Connor,
583 F.3d 1011, 1027 (7th Cir. 2009); Alvarez v. Boyd, 225
20 No. 08-4143
F.3d 820, 825 (7th Cir. 2000). But, “the Constitution
entitles the criminal defendant to a fair trial, not a perfect
one.” United States v. Neeley, 189 F.3d 670, 679 (7th Cir.
2000) (quoting Rose v. Clark, 478 U.S. 570, 579 (1986)). So
we examine the entire record, looking at factors such as
the nature and number of errors committed, the inter-
relationship and combined effect of the errors, how the
trial court handled the errors, and the strength of the
prosecution’s case. Boyd, 225 F.3d at 825. We will only
provide relief if we determine that the effect of the
errors, considered together, could not have been harm-
less. Id.
As to the first prong, we have determined there were
at least three errors. In violation of Adams’s right to
confront his witnesses, the district court admitted the
statements of the non-testifying CI to Officer Broderson
and the statements of the non-testifying CI to Officer
Gault. There was also a third error, in that the pros-
ecutor improperly vouched for Smith’s truthfulness.
However, we are not convinced that “but for the errors,
the outcome of the trial probably would have been dif-
ferent.” Id. As to the possession with intent to distribute
charge, the evidence is overwhelming. The crack co-
caine was found in his possession while left alone in a
booking cell at a police station. The amount of the
drugs found, and their hidden location inside his
rectal area, were enough for a jury to infer he had the
intent to distribute them. As to the conspiracy charge,
the strongest witnesses against Adams were his co-con-
spirators. And those witnesses, if believed, would have
been more than sufficient to convict Adams. These co-
No. 08-4143 21
conspirators testified consistently and corroborated Ad-
ams’s involvement and participation in their conspiracy
to distribute crack cocaine. The multiple errors that
occurred were unfortunate, but the record here fairly
demonstrates Adams’s guilt, “such that none of the
asserted errors, either individually or cumulatively”
could have affected the jury’s result. Anderson v.
Sternes, 243 F.3d 1049, 1055 (7th Cir. 2001).
E. The Fair Sentencing Act of 2010 Does Not Apply
While his appeal was pending, we granted Adams’s
request to submit a supplemental memorandum and
to seek resentencing under the Fair Sentencing Act of
2010 (“FSA”). We now reject his argument that the FSA
applies to his case.
The district court conducted Adams’s sentencing
hearing on December 5, 2008. Following the hearing it
sentenced Adams to life imprisonment for Count II,
conspiracy to distribute 50 grams or more of crack co-
caine. This was the mandatory statutory minimum sen-
tence in place at the time under 21 U.S.C. § 841(b)(1)(A)(iii)
based on the court’s finding that Adams conspired
to distribute 61.2 grams of crack cocaine and had two
prior felony convictions involving crack cocaine.1
1
The court also sentenced Adams to 151 months’ imprison-
ment for Count I, possession with intent to distribute, to run
concurrent with the conspiracy sentence.
22 No. 08-4143
On August 3, 2010, the penalty provisions of 21 U.S.C.
§ 841(b)(1)(A)(iii) were modified by the FSA. Under the
new law, a person with two or more prior felony con-
victions must be found responsible for 280 grams or
more of crack cocaine to trigger a mandatory life sentence.
Adams argues that because he was only found responsi-
ble for 61.2 grams of crack cocaine, under the new law
he would no longer be subject to a statutory minimum
life sentence, and he should be resentenced. However,
we have recently held that the FSA is not retroactive.
United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010).
Because Adams was sentenced before the FSA became
law, it does not require him to be resentenced, and so
we affirm his sentence.
III. CONCLUSION
For the reasons expressed above, we A FFIRM Adams’s
conviction and sentence.
12-13-10